John M. Kelly v. Missouri Department of Social Services, Family Support Division , 2015 Mo. App. LEXIS 274 ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JOHN M. KELLY, )
)
Appellant, )
)
v. ) WD77544
)
) OPINION FILED:
MISSOURI DEPARTMENT OF SOCIAL ) March 10, 2015
SERVICES, FAMILY SUPPORT )
DIVISION, )
)
Respondent. )
Appeal from the Circuit Court of Caldwell County, Missouri
The Honorable R. Brent Elliott, Judge
Before Division I: Cynthia L. Martin, Presiding Judge, and
Mark D. Pfeiffer and Gary D. Witt, Judges
John M. Kelly (“Kelly”) appeals, pro se, from the judgment of the Circuit Court of
Caldwell County, Missouri (“circuit court”), affirming an administrative ruling suspending
Kelly’s driver’s license for his failure to pay child support and spousal support.
On appeal, we review the administrative agency’s decision rather than the judgment of
the circuit court; however, we affirm or reverse the circuit court’s judgment based upon our
review of the administrative decision. Schumer v. Lee, 404 S.W.3d 443, 445 (Mo. App. W.D.
2013). We affirm the judgment of the circuit court.
Factual and Procedural Background1
On December 30, 2003, the Monroe County, New York, Supreme Court granted
Marianne Trecaso (“Trecaso”) a Judgment of Absolute Divorce (“New York Judgment”),
dissolving her marriage to Kelly. Trecaso was awarded sole custody of the parties’ three minor
children. Kelly was ordered to pay $1613.34 bi-monthly to Trecaso as child support and also
ordered to pay $3000 per month as spousal maintenance to Trecaso. The amount of child
support decreased as the children reached ages of emancipation, the youngest of which reached
the age of emancipation on May 7, 2012. Kelly did not pay the child or spousal support as
ordered by the New York Judgment.
The State of New York filed a Request to Register a Foreign Support Order with the
circuit court. On August 30, 2012, after a hearing in which Kelly contested the foreign support
order registration, the circuit court entered a Confirmation of Registered Order, which confirmed
the Foreign Support Order issued by the State of New York and confirmed Kelly’s arrearage
amount of $369,543.16 as of May 7, 2012. Kelly did not appeal from the circuit court’s
Registration of Foreign Support Order.
On September 29, 2013, Kelly was served with a Notice of the Family Support Division’s
(“Division”) intent to suspend his driver’s license, alleging that according to Division records, as
of August 20, 2013, Kelly owed $414,543.16 in past due support. Kelly requested an
administrative hearing, which was held December 4, 2013, with Trecaso, Kelly, and a Child
Support Enforcement Specialist participating.
The Specialist testified that the parties’ youngest child is now emancipated and that
Kelly’s child support obligation ended as of May 7, 2012; however, his spousal support
1
In reviewing an administrative agency’s decision, we consider the whole record, not merely the evidence
that supports the agency’s decision, and we no longer view the evidence in the light most favorable to the agency’s
decision. Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 (Mo. banc 2004).
2
continues to accrue at $3000 per month. As of September 29, 2013, the record reflected that
Kelly owed $417,543.16 in past due support.
Kelly admitted that he was the person that was ordered to pay child support by the New
York court. Kelly also admitted that he did not make any direct payments to Trecaso for which
he had not been given credit and that the children did not ever live with him for an extended
period of time without returning to Trecaso’s care. Kelly testified as to why he believed he did
not owe the support and why he believed the Division did not have the legal authority to suspend
his driver’s license.
Trecaso testified that she agreed with the amounts of child and spousal support owed by
Kelly as stated by the Specialist and that Kelly still owes the full amount of child and spousal
support.
The hearing officer issued the Director of the Missouri Department of Social Services’
(“Director”) Decision on February 20, 2014, finding a total combined child support and
maintenance arrearage as of September 29, 2013, of $417,543.16. The hearing officer affirmed
the Division’s action, concluding that the Division had the statutory authority to suspend Kelly’s
license as a person who owes a child support arrearage greater than or equal to three months
support or $2500, whichever is less, pursuant to sections 454.1003.1(1) and 454.1005.4(2).
Kelly filed a petition for review of the Decision with the circuit court. The circuit court
affirmed the Decision.
Kelly timely appeals.
Standard of Review
Article V, section 18 of the Missouri Constitution authorizes judicial review of agency
decisions to determine whether the decision is “supported by competent and substantial evidence
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upon the whole record.” “An appellate court reviews the decision of the agency rather than the
decision of the circuit court.” Stone v. Mo. Dep’t of Health & Senior Servs., 350 S.W.3d 14, 19
(Mo. banc 2011). The appellate court reviews whether the agency’s decision:
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
§ 536.140.2.
We defer to the administrative hearing officer’s credibility determinations and the weight
given to evidence. Stone, 350 S.W.3d at 20 (citing § 536.140.3). We will not substitute our
judgment for that of the administrative hearing officer on factual matters. Id. When the
agency’s decision involves a question of law, we review the question de novo. Id. (citing
§ 536.140.3).
Analysis
Point I
In the first of six points raised on appeal, Kelly alleges that the trial court applied an
improper standard when it reviewed the Director’s Decision. “Where, such as here, a party seeks
review of an agency decision, both the circuit court and this court review the agency’s decision.”
Rice v. State, Dep’t of Soc. Servs., 971 S.W.2d 840, 842 (Mo. App. E.D. 1998). Because we
review the decision of the agency and not the judgment of the circuit court, it is inappropriate for
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the point relied on to allege circuit court error instead of agency error. Id. at 842. As such,
Kelly’s first point must be dismissed. Id.2
Point I is dismissed.
Point II
In his second point, Kelly contends that the Division erred in enforcing the support orders
from the New York Judgment. In essence, Kelly is contending that the New York court erred in
entering the child support and spousal support orders in violation of 15 U.S.C. §§ 1671-1673,
though he apparently has not sought or received a ruling from a New York appellate court
establishing error in the New York Judgment. He then characterizes the New York Judgment
and/or Foreign Support Order as a “garnishment order” and attempts to litigate the validity of the
New York rulings in this Missouri appeal from an administrative suspension of his driver’s
license in the state of Missouri. Kelly argues that because the New York court ordered in excess
of 60% of his wages garnished, and 15 U.S.C. § 1673 prohibits the garnishment of more than
60% of an individual’s aggregate disposable earnings for a workweek, the Division had no
authority to rely upon a final judgment from the state of New York or the Registration of Foreign
Support Order (which had previously been confirmed by the circuit court and thus registered in
the state of Missouri, without appeal therefrom) by suspending his driver’s license.
There is no dispute that the Foreign Support Order was registered in Missouri. The
registered order “is enforceable in the same manner and is subject to the same procedures as an
order issued by a tribunal of this state.” § 454.953(b). The Confirmation of Registered Order
confirmed both the order of support issued by the State of New York and arrearages in the
amount of $369,543.16 as of May 7, 2012. Suspending an obligor’s license when the obligor is
2
Irrespective, Kelly’s ultimate complaint is that he requested de novo review of the agency’s application of
law to the undisputed facts. This is, in part, precisely what the circuit court did, stating in its judgment, “the
Decision of the Division was made upon lawful procedure” and “was authorized by law.”
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not making child support payments in accordance with a support order and owes an arrearage in
an amount greater than or equal to three months support payments or $2500, whichever is less, as
of the date of service of a notice of intent to suspend such license is one of the expressly
authorized means of enforcement. § 454.1003.1(1). Clearly, the confirmed arrearage exceeds
the statutory minimum. Accordingly, the Division was statutorily authorized to suspend Kelly’s
driver’s license.
Further, the Division’s enforcement action in suspending Kelly’s driver’s license is not a
garnishment action and 15 U.S.C. §§ 1671-1673 are inapplicable to it. “The term ‘garnishment’
means any legal or equitable procedure through which the earnings of any individual are required
to be withheld for payment of any debt.” 15 U.S.C. § 1672(c). Kelly’s earnings have not been
“garnished” by the subject administrative ruling. Simply put, this is not a garnishment action
and Kelly’s citation to federal statutory garnishment law is inapplicable.
Still further, Kelly relies on 15 U.S.C. § 1673 in his collateral attack on the New York
Judgment. However, that statute is a restriction on garnishment and expressly provides that the
maximum allowable garnishment restrictions contained in subsection (a) of the statute “do not
apply in the case of any order for the support of any person issued by a court of competent
jurisdiction or in accordance with an administrative procedure, which is established by State law,
which affords substantial due process, and which is subject to judicial review.” 15 U.S.C.
§ 1673(b)(1)(A) (emphasis added). Hence, 15 U.S.C. § 1673 is inapplicable to the New York
Judgment or corresponding Foreign Support Order.
Finally, Kelly’s attempt to challenge the validity of the New York Judgment in this case
constitutes an impermissible collateral attack. “A collateral attack is an attempt to impeach a
judgment in a proceeding not instituted for the express purpose of annulling the judgment.”
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Lyons v. Sloop, 40 S.W.3d 1, 9 n.4 (Mo. App. W.D. 2001) (internal quotation omitted). “A
judgment rendered by a court having jurisdiction of the parties and subject matter . . . is not open
to collateral attack in respect to its validity or conclusiveness of the matters adjudicated.” Id. at 9
(internal quotation omitted).3
Point II is denied.
Point III
In his third point, Kelly contends that the Division erred in approving suspension of his
driver’s license because, “I am in accord with all support orders.” Kelly argues that since his
children have all reached the age of emancipation, any “current” obligation to pay child support
has been terminated. Kelly submits that section 454.1003.1(1) does not apply to him because he
does not owe any current child support obligations, only arrearages. Kelly’s interpretation of
section 454.1003—void of any case precedent in support thereof—is borderline frivolous.
“Section 454.1003 authorizes the Division to suspend the driver’s license, among other
licenses, of a person who owes past-due child support.” Laughlin v. Abney, 254 S.W.3d 255,
257 (Mo. App. S.D. 2008) (emphasis added). Specifically, license suspension is authorized
“[w]hen the obligor is not making child support payments in accordance with a support order and
owes an arrearage in an amount greater than or equal to three months support payments or two
thousand five hundred dollars, whichever is less, as of the date of service of a notice of intent to
suspend such license[.]” § 454.1003.1(1). An “arrearage” is defined as:
the amount created by a failure to provide:
(a) Support to a child pursuant to an administrative or judicial support order; or
3
Ex gratia, we note that even Kelly’s reference to a 60% maximum garnishment rate is inapplicable where,
as here, the New York Judgment was ordering payment of child and spousal support which, pursuant to 15 U.S.C.
§ 1673(b)(2)(B), is subject to a 65% maximum garnishment rate. Kelly admits in his briefing that, even under his
mathematical calculation, the New York Judgment’s support obligations do not exceed 65% of his weekly
disposable earnings.
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(b) Support to a spouse if the judgment or order requiring payment of spousal
support also requires payment of child support and such spouse is the custodial
parent[.]
§ 454.1000(1).
The primary rule of statutory construction requires that this court ascertain the
legislature’s intent by considering the plain and ordinary meaning of the words used in the
statute. Exchange Bank of Mo. v. Gerlt, 367 S.W.3d 132, 134 (Mo. App. W.D. 2012). We do
not need to apply canons of construction when a statute can be easily read and understood. Id.
Here, the meaning of the statute is clear: the Division may issue an order suspending an
obligor’s license when the obligor is not making child support payments in accordance with a
support order and owes a specified minimum arrearage. The statute does not require the obligor
to have a “current” or “continuing” support obligation or order.
Kelly was ordered by the New York Judgment to make child support payments. By his
own admission, Kelly refused to abide by the terms of the New York Judgment and a six-figure
arrearage presently exists. The Confirmation of Registered Order, which was in evidence at the
hearing, confirmed Kelly’s arrearage amount at $369,543.16 as of May 7, 2012. At the
administrative hearing, the Child Support Enforcement Specialist testified that as of the date the
Division issued its notice, Kelly owed an arrearage of $417,543.16 in past due support, which is
an amount far greater than the $2500 statutory minimum. Kelly admitted at the administrative
hearing that he had made no direct payments to Trecaso for which the Division had failed to give
him credit. No evidence was presented at the hearing that Kelly had entered into a payment plan
with the Division. Accordingly, the Division was statutorily authorized to suspend Kelly’s
driver’s license.
Point III is denied.
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Point IV
In his fourth point, Kelly contends that the Division erred by holding that
section 454.1005.4 barred Kelly from asserting “the protection of RSMo 454.1003 and other
controlling legal authority at a license suspension hearing.” Section 454.1005.4 states:
If the action [to show cause for suspension for a license] involves an arrearage,
the only issues that may be determined in a hearing pursuant to this section are:
(1) The identity of the obligor;
(2) Whether the arrearage is in an amount greater than or equal to three months of
support payments or two thousand five hundred dollars, whichever is less, by the
date of service of a notice of intent to suspend; and
(3) Whether the obligor has entered a payment plan. If the action involves a
failure to comply with a subpoena or order, the only issues that may be
determined are the identity of the obligor and whether the obligor has complied
with the subpoena or order.
At the hearing, the hearing officer determined that:
 Kelly credibly testified that: (1) he is the person ordered to pay child support in
accordance with the New York Judgment and subsequent orders; (2) he made no direct
payments to Trecaso for which he failed to receive credit, and he is not entitled to any
period of statutory abatement;
 the Division showed a support arrearage of $417,543.16 as of the date of service of the
hearing notice;
 there was no evidence or testimony that Kelly had entered into a payment plan with the
Division;
 Trecaso testified that she agreed with the Division’s calculation of the support arrearage;
and
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 the Child Support Enforcement Specialist testified that spousal maintenance continues to
accrue at the rate of $3000 per month, and the State of Missouri has received no
payments from Kelly.
Accordingly, the Division conducted its hearing and made its determination as it is statutorily
authorized and directed to do pursuant to section 454.1005.4. Furthermore, as we have discussed
in Point III, section 454.1003 offers Kelly no shelter from the agency’s action.
Point IV is denied.
Point V
In his fifth point, Kelly asserts that the Division erred by not following the requirement of
section 454.1003 that there must be an arrearage to suspend a driver’s license. He contends that
he does not owe any arrearage. Of course, this is in direct contradiction to Kelly’s assertion in
his appellate brief in support of Point III, wherein Kelly argues, “I do not owe any current child
support obligations, only arrears.” We conclude that the record before the Division clearly
demonstrated a significant arrearage.
An “arrearage” as defined in section 454.1000(1) is:
the amount created by a failure to provide:
(a) Support to a child pursuant to an administrative or judicial support order; or
(b) Support to a spouse if the judgment or order requiring payment of spousal
support also requires payment of child support and such spouse is the custodial
parent[.]
A Confirmation of Registered Order was filed August 30, 2012, in the circuit court, which
confirmed Kelly’s arrearage amount of $369,543.16 as of May 7, 2012. The Child Support
Enforcement Specialist testified at the administrative hearing that as of the date of the license
suspension notice, August 20, 2013, Kelly owed child support of $129,916.93 and spousal
10
support of $287,626.23 and that Missouri has not received any payments. The hearing officer
determined that as of September 29, 2013, Kelly’s combined child support and spousal support
arrearage was $417,543.16. This arrearage finding is supported by substantial evidence in the
record and is clearly in excess of the statutory minimum in section 454.1003.1(1) of an amount
greater than or equal to three months support or $2500, whichever is less. Accordingly, the
Division was statutorily authorized to suspend Kelly’s driver’s license. The hearing officer’s
Decision is supported by competent and substantial evidence upon the whole record.
Point V is denied.
Point VI
In his sixth point, Kelly avers that the Division was without statutory authority to bring
an enforcement action and suspend his driver’s license because his children are no longer
minors.
Kelly was ordered to pay child support for his children before their emancipation. The
Child Support Enforcement Specialist testified that the parties’ children are emancipated; that
Kelly’s continuing child support obligation ended as of May 7, 2012; that as of the date of
license suspension notice, August 20, 2013, Kelly owed child support of $129,916.93; and that
Missouri had not received any payments. “The emancipation of a child does not extinguish the
obligation of a parent to pay any amount of child support in arrearage at the time of
emancipation.” Lyons, 40 S.W.3d at 9. Accordingly, the Division was statutorily authorized to
suspend Kelly’s driver’s license.
Point VI is denied.
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Conclusion
We affirm the circuit court’s judgment. Based upon our examination of the record as a
whole, we find that there is sufficient competent and substantial evidence to support the
Director’s Decision that the Division had the statutory authority to suspend Kelly’s driver’s
license.
Mark D. Pfeiffer, Judge
Cynthia L. Martin, Presiding Judge,
and Gary D. Witt, Judge, concur.
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